IDOR announced on February 28, 2019 that it too would grant an extension to the March 1 deadline for farmers and fishermen who did not make estimated tax payments by January 15, 2019. These farmers...

Row Crop Farming Is a Nuisance?

March 3, 2015

Roger A. McEowen

A recent decision by the Illinois Court of Appeals involved a small farm that a town tried to zone out of existence. The case involved the town's ability to zone agricultural activities and the state's right-to-farm law. The plaintiff, a small town of 230 people, sued the defendants, a married couple, for violating a town ordinance which declared commercial farming within the town boundaries to be a nuisance. The defendants bought a 57-acre farm in north-central Illinois, six acres of which were within the town's boundaries. The tract had been a commercial nursery for trees and prairie grass. After buying the property, the defendants removed the trees, leveled the property and prepared the ground for planting corn and soybeans. Nine months after the defendant's purchase, the town enacted the ordinance at issue expanding the definition of nuisance to include engaging "in any commercial farming for the production and harvesting of any agricultural or horticultural products on any private or public property within" the town's limits.

The defendants planted a corn crop about six weeks later and the town sent them a notice to abate their nuisance. The town then filed a complaint seeking a penalty for violating the ordinance and an injunction. The matter ended up in court and the trial court acquitted the defendants based on lack of notice, but then issued an injunction barring farming on the portion of the property within the town's borders. The trial court held that the state (IL) Farm Nuisance Suit Act (Act) did not apply to block the town's ordinance from applying.

On appeal, the court reversed. The court noted that the town had the authority to enact the ordinance at issue, but that the Act preempted the ordinance from applying because the Act specified that a farm would not become a nuisance because of any changed conditions in the surrounding area. The enactment of the ordinance was a changed condition that the Act applied to. The court also noted that the Act's purpose was to protect and conserve the development and improvement of agricultural land, and that the tract in issue had been used continuously for commercial agricultural purposes.

A dissenting judge would have held that the Act did not apply to preempt the ordinance because the tract in issue had not been used to produce corn and soybeans for at least a year before the enactment of the ordinance, and because the defendants changed the use of the tract. The dissent also believed that there were no changed conditions in the "surrounding area" such as the neighborhood surrounding the farm changing. The dissent's view would basically have given the town a year after the defendant had started raising row crops to zone the defendant's farming activity out of existence.

The court's decision means that a town can't see what use a landowner is going to put the property to and then try to zone it out of existence after the fact. The court specifically noted that the use of the land in this case had always been agricultural. In previous cases, the Illinois Court of Appeals had determined that the use of seven acres to board 19 show horses constituted an agricultural use, as did a poultry hatchery on a three-acre tract. Also, the Court of Appeals has held that the "rearing and raising of hogs, in any quantity, constitutes an agricultural purpose." So, the dissent's opinion really makes no sense. Changing ownership and the type of crops raised doesn't negate the application of the right-to-farm law. As the majority noted, "this is not a situation where someone went from growing crops to creating a feedlot." Instead, the ordinance at issue barred all farming, and did so after the fact.

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